Catholic Charities vs. Single-Sex Couples In the Age of Privatization

The split between the State of Illinois and Catholic Charities over same-sex adoption is indicative of a larger conflict between church and state in the era of government privatization, and part of one of the most interesting stories of 2011.

By Whet Moser

Published Jan. 3, 2012

An excellent New York Times article has the tension between Catholic Charities and the State of Illinois back in the news again—briefly, that Catholic Charities are shutting down most of their state affiliates because Illinois won’t subsidize them unless they’re willing to place children with same-sex couples (which would eliminate virtually all of their funding). But as Laurie Goodstein writes, it’s not just Illinois, and it’s not just foster parenting:

The bishops are engaged in the religious liberty battle on several fronts. They have asked the Obama administration to lift a new requirement that Catholic and other religiously affiliated hospitals, universities and charity groups cover contraception in their employees’ health plans. A decision has been expected for weeks now.

At the same time, the bishops are protesting the recent denial of a federal contract to provide care for victims of sex trafficking, saying the decision was anti-Catholic. An official with the Department of Health and Human Services recently told a hearing on Capitol Hill that the bishops’ program was rejected because it did not provide the survivors of sex trafficking, some of whom are rape victims, with referrals for abortions or contraceptives.

Issa accused Sheldon’s department of acting in a way that violates federal laws that prohibit discrimination based on religious beliefs.

It’s exactly what the Conference of Catholic Bishops told Goodstein:

But Anthony R. Picarello Jr., general counsel and associate general secretary of the United States Conference of Catholic Bishops, disagreed. “It’s true that the church doesn’t have a First Amendment right to have a government contract,” he said, “but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.”

I’ve been looking around for legal opinions on this. In 1999, Martha Minow wrote a prescient article for the Duke Law Review discussing the First and Fourteenth Amendment conflicts that would arise from 1996 “charitable choice” legislation advanced by then-Senator John Ashcroft. Minow addresses Catholic Charities and their role as a government contractor, but sexual orientation doesn’t come up much, perhaps because the debate had not come as far a decade ago. But in a footnote, she writes:

[I]f public dollars are at stake, public values should frame the outer bounds of their use. Those organizations that refuse principles of nondiscrimination, participation in districtwide activities, and the sharing of information can certainly choose not to accept the public dollars. It is worth noting that public solicitude for religious activities can be expressed in different degrees. Direct contractual relationships create more mutual involvement than do vouchers. Tax-exempt status, on the other hand, provides support less directly than both contracts and vouchers, but even tax-exempt status can, and should, be denied where the religious entity violates national norms.

Minow specifically brings up the 1983 decision in Bob Jones University v. United States, in which the Supreme Court ruled that the institution was not eligible to be tax-exempt based on its policy of discrimination against interracial couples:

As to the question of why racial discrimination was okay then and not now under tax-exemption guidedlines, the majority wrote in a footnote:

In 1894, when the first charitable exemption provision was enacted, racially segregated educational institutions would not have been regarded as against public policy. Yet contemporary standards must be considered in determining whether given activities provide a public benefit and are entitled to the charitable tax exemption.

Bob Jones deals with tax exemption, not government contracts, but I think it’s a useful analogy. Which is one reason it’s a shame that Catholic Charities decided to take its ball and go home, instead of litigating it to the finish. It would be interesting to see the legal conflicts Minow wrote about further explored in the context of sexual orientation—in part because, like Bob Jones, it might provide a measuring stick for the status of same-sex marriage in contemporary America and further wisdom (or an instructive lack thereof) in an age of increasing government privatization.

More than that, it’s a shame because the whole thing is really depressing: a game of normative-ethics chicken in which both sides fought to their absolute ends (as compared to the Lutheran Church Missouri Synod, which blinked). A friend of mine, a progressive Lutheran pastor, writer, and foster parent, reflected on the end result:

The Catholic Charities agencies that brought the suit had already offered to refer same-sex couples to other agencies so that no one who wished to serve would be prevented from doing so. The state’s decision rather oddly inverts the priority of interests that is supposed to guide the foster care system. Children will be moved, albeit gradually, away from the caseworkers and agencies that have managed their cases until now, and perhaps from their foster families as well. And certain populations of current and prospective foster parents–who are still very much in demand–will be unavailable to kids coming into the system…. It’s not even obvious to me who will benefit. Same-sex couples won’t have access to the agencies that excluded them because those agencies won’t exist any more. They’ll end up going to the agencies that would have welcomed them even if Catholic Charities were still in business.

To me the argument as to who benefits is clear, but the answer is unsatisfyingly abstract: to use Minow’s words, the preservation of “public values,” in this case established by the state’s new civil-unions law. Unsatisfyingly abstract, at least, compared to the very concrete realities of the foster-care system. Usually the more abstract and absolute an argument is the more it interests me, but I’m torn by my friend’s argument that if “the welfare of children is paramount, we argue, the particular sentiments of a state legislature should not keep them out of safe, caring households"—even if I think the particular sentiments of a state legislature, in this instance and in most, reflect not just their opinions but the “common community conscience.” (And in that sense, the state’s position did push the Missouri Synod in the right direction, though the loss of Catholic Charities’ involvement in foster care may make it a Pyrrhic victory.)

All in all, it’s a tremendously frustrating case and an even more frustrating result, on both moral and legal grounds. Biblical wisdom aside, sometimes the baby just ends up getting split.

Update: Worth noting: both Minow and my friend thoughtfully discuss arguments as to the benefits of religious organizations to the modern welfare state, which are beyond the scope of this post but compelling in their own right and worth reading.